Uttarakhand High Court
Prem Chandra Sachan S/O Beni Madhan ... vs State Of Uttaranchal Through ... on 13 June, 2006
Author: Rajesh Tandon
Bench: Rajesh Tandon
JUDGMENT Rajesh Tandon, J.
1. Heard Sri C.K. Sharma counsel for the petitioner and Standing Counsel for the respondents.
2. By the present writ petition the petitioner has challenged the orders dated 30.4.2000 and 25.1.2001 passed by the respondent No. 4 and 3 respectively.
3. Briefly stated the petitioner was initially appointed as Constable in U.P. Police in 1980 and at present posted in District Chamoli. The Superintendent of Police Chamoli initiated a departmental inquiry against the petitioner under U.P. Sub ordinate Police Officers Punishment and Appeal Rules 1991 on the charge that the petitioner was transferred from Hamirpur to District Chamoli and was relieved on 14.5.1999 but he did not join his duty at Chamoli. The enquiry was conducted by the Deputy Superintendent of Police, Chamoli, and recommended the punishment of dismissal from service, It has been alleged that despite the notices were sent to the petitioner he did not participate in enquiry proceedings and thus enquiry was conducted ex parte against him.
4. Subsequent to this a show cause notice was issued against the petitioner to the effect that as to why the petitioner be not dismissed from the services. The show cause notice was also could not served upon the petitioner. Subsequent to this an order dismissing the petitioner from the service was passed on 30.4.2000. Against the order of dismissal the petitioner moved the appeal to the Deputy Inspector General of Police, Garhwal Region, Pauri who dismissed the appeal vide his order dated 25.1.2001 and affirmed the order of dismissal passed by the Superintendent of Police, Chamoli. Feeling aggrieved the present writ petition has been filed.
5. The petitioner in the instant writ petition has stated that he went to report in the Police Line, Hamirpur but before reaching the Police Line he fell ill. The petitioner got examined himself at Community Health Centre, Moadaha and the doctor advised him to take rest from 13.5.1998 to 26.6.1999. According to the petitioner he sent the information to this effect to the Superintendent of Police, Chamoli by the registered post. The petitioner was further advised to take rest from 29.6.99 to 13.8.99 and information to this effect was also sent to the Superintendent of Police, Chamoli. The petitioner was again medically examined by the doctor and he was advised to take rest for improvement of his health. The petitioner remained under treatment till 4.4.2000. The petitioner has alleged that the Enquiry Officer and Punishing Authority were well acquainted about the address of the petitioner where he was residing during his illness but the notices regarding inquiry were sent on another address. The Inquiry officer illegally proceeded ex parte and submitted an ex parte report recommending the dismissal of the petitioner from the service.
6. The petitioner was entitled to be heard before any order for termination was passed. No opportunity was given to the petitioner of being heard before passing the order against her. The order, therefore, was passed by the respondent No. 1 in utter violation of the principles of natural justice.
7. The learned Counsel further submitted that the disciplinary as well appellate authority failed to appreciate this aspect of the matter that the petitioner had been deprived of an opportunity of adducing evidence in the Inquiry and to cross-examine prosecution witnesses and, therefore, adequate and reasonable opportunities had not been afforded to the petitioner to defend in the Disciplinary Inquiry proceedings. According to the counsel, the impugned orders of punishments passed by the respondents vitiate in law being violative of Article 311(2) of the Constitution of India. Article 311(2) of the Constitution of India reads as under.
8. Article 311(2) of the Constitution of India provides for giving reasonable opportunity of hearing, which reads as under:
311(2). No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect those charges.
9. The Constitution Bench of the Apex court in the case- of Khem Chand v. Union of India , has explained the term 'reasonable opportunity' occurring in Article 311(2) of the Constitution of India reads as under:
The reasonable opportunity envisaged by the provision under consideration includes:
(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;
(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence.
(c) ...
10. The same view has been re-iterated by the Apex court in the case-Kashinath Dikshita v. Union of India and Ors. . The observations are quoted below:
The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The government servant should be given an Opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him.
11. The Apex Court in the case Uttar Pradesh Government v. Sabir Hussain , while dealing with the question of Non-supply of copies of material documents has observed as under:
In view of these stark facts the High court was right in holding that the plaintiff (respondent) was not given a reasonable opportunity to show cause against the action proposed to be taken against him and that the non-supply of the copies of the material documents had caused serious prejudice to him in making a proper representation.
12. I find substance in the submission of the counsel for the petitioner to the effect that the petitioner was neither afforded adequate and reasonable opportunity by the Inquiry officer to defend in the inquiry proceeding nor the disciplinary authority afforded such opportunity to the petitioner to defend against the Inquiry officer's report at the stage of making representation. Therefore, I hold that entire inquiry vitiates for non-adherence of the provision as contained under Article 311(2) of the Constitution of India.
13. The Inquiry officer in its Inquiry-report not only proposed punishment for the petitioner but also recommended severe punishments for the petitioner.
14. According to the counsel for the petitioner if an inquiry report proposes or recommends punishment for the delinquent employee, there remains all the possibility of influencing the mind of the disciplinary authority and, therefore, such 'Inquiry-report' cannot be said to be free from bias on the part of the Inquiry-officer'. In support of his submission, the learned Counsel has referred a case of the Apex court - Union of India v. Mohd. Ramzan khan, , wherein the Apex court in Paragraph 13 of the judgment made the following passing observation:
As this Court rightly pointed out in the Gujrat case , the disciplinary authority is very often influenced by the conclusions of the Inquiry officer and even by the recommendations relating to the nature of punishment to be inflicted.
15. The counsel also submitted that the Constitution bench of the Apex court has given certain observations about the duties of the Inquiry officer in the case -Managing Director, ECIL, Hyderabad v. B. Karunakar , which is reproduced below What are the duties of the Inquiry Officer appointed by the disciplinary authority to conduct the inquiry is the next question and this Court in A.N. D'Silva v. Union of India has in terms held that the question of imposing punishment can only arise after inquiry is made and the report of the Inquiry Officer is received. It is for the punishing authority to propose the punishment and not for the inquiring authority to do so...
...Two things, therefore, emerge from this decision, viz., that it is not the function of the inquiry Officer to propose any punishment even after he records findings of guilt against the delinquent employee...Secondly, it is for the disciplinary authority to propose the punishment after receipt of the report of the Inquiry Officer, which suggests that before the authority proposes the punishment, it must have applied its mind to the evidence and the findings recorded by the Inquiry Officer.
16. It is not the job of the Inquiry Officer to propose or recommend any punishment though he may record findings of guilt against the delinquent employee, and if the Inquiry officer does so, then there may be every possibility of biased attitude of the disciplinary authority against the delinquent employee and the report of the Inquiry officer can not be said to be free from bias. Therefore, I hold that the recommendation of the Inquiry officer might have influenced the mind of the disciplinary authority in imposing severe punishment of dismissal from service on the petitioner. The 'Inquiry Report' as well as the impugned orders of punishments, in view of these facts, vitiate in law.
17. Counsel for the petitioner has next submitted that even otherwise, the punishment of 'Dismissal from service' awarded to the petitioner is too harsh and extremely severe. The counsel submitted that Rule 4 of The Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment And Appeal) Rules,1991' provides the following punishments:
Major penalties-(i) Dismissal from service (ii) Removal from service (iii) Reduction in rank including reduction to a lower scale or to a lower stage in a time scale.
Minor penalties are:- (i) Withholding of promotion (ii) Fine not exceeding one month's pay (iii) with-holding of increment, including stoppage at an efficiency bar (iv) Censure.
18. The Apex court in a case- Syed Zaheer Hussain v. Union of India (S.C). while dealing with a case of unauthorised absent of an employee, held that the punishment of dismissal from service was too harsh and it required to be substituted by lesser punishment. The relevant observations are quoted below:
4. In our view, in the facts and circumstances of the case, the punishment of dismissal from services is too harsh and on the contrary it is required to be substituted by appropriate lesser punishment ... In our view, ends of justice will be served if we set aside the order of dismissal of the appellant and instead direct reinstatement of the appellant in service...
19. The Apex court again while dealing with a case of unauthorised absence from duty of a Central Govt. employee (an employee of C.R.P.F.) and in the case- Union of India v. Giriraj Sharma ,held that the punishment of dismissal from service was harsh. Paragraph 2 of the judgment, is reproduced below:
2. The incumbent while admitting the fact that he had over-stayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. We are of the opinion that the punishment of dismissal for over-staying the period of 12 days in the said circumstances which have not been controverted in the counter is harsh
20. In the case-UPSRTC v. Mahesh Kumar reported in 2000 (2) Supreme Today-303, the Apex court while considering the question of quantum of punishment, referred a three judges Bench decisions of the Apex court, rendered in the year 1995, in the following way:
7. A Three-Judge Bench of the Apex Court in the case-B.C. Chaturvedi v. Union of India and Ors. laid down as under:
...If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
8. This will show that not only this Court but also the High Court can interfere with the punishment inflicted upon the delinquent employee if, that penalty shocks the conscience of the Court...
21. Three-Judge Bench of the Apex court in Colour-Chem Ltd. v. A.L. Alaspurkar and Ors. (S.C), where the Apex court has laid down the same proposition of law and has held that if the punishment imposed is shockingly disproportionate to the charges leveled against the employee, it will be open for the Court to interfere.
22. The petitioner was dismissed from service by the order dated 30.4.2000 by which time he had put-in about 20 years service in the department as the petitioner had joined the service of Police department in the year 1980 as constable and that the disciplinary authority was harsh enough towards the petitioner in punishing him by extremely severe punishment of dismissal from service without considering whole life contribution of the petitioner in serving the department and, therefore, the punishment awarded to the petitioner is shockingly disproportionate. The counsel further submitted that by the impugned punishment of dismissal, the petitioner has been deprived of all service benefits including pensionary benefits also.
23. It is not a case where the Disciplinary authority as well as the appellate authority had to award extremely severe punishment of dismissal from service. Even in the circumstances of the petitioner being found guilty for the absence from duty for certain period, the punishment of dismissal from service would be shockingly disproportionate to the gravity of charges.
24. Therefore, the impugned punishment orders being bad in law, are liable to be set aside on this ground also.
25. The Apex court in the case-_Bhagat Ram v. State if Himanchal Pradesh has held that where the findings of the disciplinary authority are perverse or are otherwise unsustainable in the eye of law, the High Court can always interfere with the same and can also enquire whether the conclusion of the Government on which the impugned order of dismissal rests, is supported by reliable evidence or not. The relevant observations are quoted below:
10. Let us make it abundantly clear that we are not sitting in appeal over the findings of the Enquiry Officer. In a petition under article 226, the High Court does not function as a court of appeal over the findings of Disciplinary Authority. But where the finding is utterly perverse, the court can always interfere with the same. We may refer in this connection to Union of India v. H. C. Goel Gajendragadkar, J. speaking for the Court observed as under:
...In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Article 311(2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charge framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High court that the ultimate conclusion of the Government in the said proceedings which is the basis of his dismissal is based on no evidence.
26. The Apex court in the case- Kuldeep Singh v. The Commissioner of Police, reported in 1998 judgments Today 603 has held that where the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse, the High Court can interfere with the same. The relevant portion of Paragraph 5 of the judgment is reproduced to below:
It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride, the domestic enquiry as well, and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority.
27. Further the Apex Court in the case Bhagwan Lal Arya v. Commissioner of Police has held that absence on medical grounds, supported by proper medical certificate does not amount to grave misconduct or continued misconduct rendering delinquent unfit for police service. The Hon'ble Supreme Court has observed as under:
The disciplinary authority without caring to examine the medical aspect of the absence awarded to him the punishment of removal from service since their earlier order of termination of the appellant's service under the Temporary Service Rules did not materialise. No reasonable disciplinary authority would term absence on medical grounds with proper medical certificates from government doctors as grave misconduct in terms of the Delhi Police (Punishment and Appeal) Rules, 1980. Non-application of mind by quasi-judicial authorities can be seen in this case. The very fact that the respondents have asked the appellant for re-medical clearly establishes that they had received the applicant's application with medical certificate. This can never be termed as wilful absence without any information to competent authority and can never be termed as grave misconduct.
28. In view of the facts, and circumstances aforesaid the impugned orders cannot be sustained. A writ of certiorari is, therefore, issued, quashing the impugned orders, dated 30.4.2000 and 25.1.2001 passed by the respondent No. 4 & 3, respectively. Petitioner is reinstated in the services with all consequential service benefits.
29. Accordingly, writ petition is allowed. There will be no order as to costs.